Kerala High Court
Anas P.J vs State Bank Of India Rep. By Its ... on 21 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP (DRT) NO. 100 OF 2024
PETITIONER:
ANAS P.J,
AGED 53 YEARS
S/O MR.P.A.JAFFER,
PUTHENVEEDU,
CHANDANAKAVU,ALAPUZHA,
PIN - 688011
BY ADV E.V.MOLY
RESPONDENTS:
1 STATE BANK OF INDIA,
REP. BY ITS AUTHORIZED OFFICER
STRESSED ASSET RECOVERY BRANCH, 7TH FLOOR ,
VANKARATH TOWERS, PALARIVATTOM BY-PASS JUNCTION ,
ERNAKULAM, PIN - 682024
2 MOHAMMED NOOHU NAHEEM
S/O MOHAMMED NOOHU, NETTACHAZIKOM,
THEKKUMBHAGOM, PARAVUR,KOLLAM,
PIN - 691301
BY ADVS.
Ambily S
RUPA R. NAIR(K/001021/2023)
RUBAN JOE TONIYO(K/002926/2022)
MATHEW JOSEPH BALUMMEL(K/001219/2019)
K.K.CHANDRAN PILLAI (SR.)(C-41)
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(DRT) NO.100 OF 2024
2
JUDGMENT
Dated this the 21st day of May, 2024
The petitioner is the guarantor for a credit facility availed
by his brother in the year 2013 from the erstwhile State Bank
of Travancore. The initial limit sanctioned was ₹1 Crore,
which was later enhanced to ₹1.30 Crores in the year 2014.
The CC limit was reduced to ₹57 lakhs by repayment of
₹6,48,000/- as working capital term loan in the year 2019.
2. The petitioner states that the loan account could not
be maintained by the borrower and the respondent Bank
initiated coercive proceedings under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. The secured asset mortgaged by
the petitioner was auctioned on 27.09.2022 for a sum of
₹1,13,20,000/- against recovery of an amount of ₹73,72,315/-
due from the borrower.
3. According to the petitioner, the sale conducted by the
Bank is highly arbitrary and illegal. The petitioner has filed
OP(DRT) NO.100 OF 2024
S.A.No.74/2023 before the Debts Recovery Tribunal - 2,
Ernakulam. In the stay petition filed by the petitioner, the
Debts Recovery Tribunal initially granted a status quo.
Subsequently, the status quo order has been vacated.
Aggrieved by the said order, the petitioner has approached
the Debts Recovery Appellate Tribunal. Along with the
Appeal, the petitioner has filed a stay petition and a waiver
petition.
4. Though the petitioner approached the Debts
Recovery Appellate Tribunal in the month of February, 2024,
the Tribunal has not passed orders in the waiver application
so far. In the meanwhile, the Advocate Commissioner
appointed under Section 14 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 is threatening to take over
physical possession of the residential property mortgaged.
5. The petitioner would submit that the petitioner has a
fair chance to get the impugned order set aside by the
OP(DRT) NO.100 OF 2024
Appellate Tribunal. In the meanwhile, if the respondent Bank
is taking the physical possession of the petitioner's property,
then the petitioner will be put to serious hardship and loss. In
the facts of the case, the petitioner seeks to direct the Debts
Recovery Appellate Tribunal to consider the stay petition and
waiver application filed by the petitioner in a time bound
manner and to direct the Bank to defer further coercive
proceedings till decision is taken by the Debts Recovery
Appellate Tribunal on the stay petition and waiver application.
6. Standing Counsel entered appearance and resisted
the writ petition. On behalf of the respondent-Bank, it is
submitted that earlier when the Bank initiated proceedings
under the SARFAESI Act, 2002, the borrower had filed W.P.
(C.) No. 30151/2022 before this Court. This Court disposed of
the writ petition and directed the petitioner therein/borrower to
make certain payments. The borrower could not make the
payments in time. The borrower filed a petition for extension
of time to deposit the balance amount. But the said petition
OP(DRT) NO.100 OF 2024
was dismissed. A Writ Appeal was preferred by the borrower
against that judgment. The Writ Appeal was ultimately
withdrawn by the borrower.
7. The petitioner has thereafter approached this Court
filing this O.P.(DRT). This O.P.(DRT) is without any merit and
it is only an attempt to delay the recovery proceedings. The
secured asset has already been auctioned in favour of auction
purchaser. This O.P.(DRT) is therefore liable to be
dismissed, contended the Standing Counsel.
8. I have heard the learned counsel for the petitioner
and the learned Standing Counsel appearing for the 1 st
respondent Bank.
9. The petitioner approached the Debts Recovery
Tribunal filing S.A.No. 74/2023 seeking to set aside the sale
of the property which was held on 27.09.2022. There was
initially an order of status quo. Ultimately, after hearing the
parties, the Debts Recovery Tribunal has vacated the status
quo order.
OP(DRT) NO.100 OF 2024
10. Aggrieved by the said order of the Debts Recovery
Tribunal, the petitioner has approached the Debts Recovery
Appellate Tribunal, Chennai. Pleadings would indicate that the
petitioner had approached the Debts Recovery Appellate
Tribunal on 16.02.2024. The waiver petition filed by the
petitioner is dated 16.02.2024. The petitioner had more than
three months' time to move the Debts Recovery Appellate
Tribunal and obtain orders on the waiver petition and on the
stay petition. The petitioner has failed to do so.
11. Therefore, at this stage, the petitioner cannot
approach this Court for a direction to the Debts Recovery
Appellate Tribunal to finally dispose of his waiver application.
It is for the petitioner to pursue the matter before the Debts
Recovery Appellate Tribunal.
The O.P.(DRT) fails and it is dismissed.
Sd/-
N.NAGARESH
JUDGE
DCS
OP(DRT) NO.100 OF 2024
APPENDIX OF OP (DRT) 100/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE PROCEEDINGS DATED
11.01.2024 IN I.A.452/2023 IN
SA.NO.74/2023 PENDING BEFORE DRT-II,
ERNAKULAM.
Exhibit P2 THE TRUE COPY OF THE APPEAL FILED BY
THE PETITIONER VIDE DIARY
NO.208/2024(RECEIPT DATED 08.02.2024)
BEFORE THE DRAT, CHENNAI
Exhibit P3 THE TRUE COPY OF THE APPLICATION
SEEKING STAY FILED U/S.18(1) OF THE
SARFAESI ACT FILED BEFORE THE DRAT,
CHENNAI (ID. NO209/2024 DATED
08.02.2024) BY THE PETITIONER
Exhibit P 4 THE TRUE COPY OF THE APPLICATION
(I.D.NO.210/2024 DATED 08.02.2024)
SEEKING WAIVER OF PRE-CONDITIONAL
DEPOSIT AS LAID U/S.18(1) (II) OF
SARFAESI ACT FILED BY THE PETITIONER
Exhibit P5 THE TRUE COPY OF THE M.A
(ID.NO.211/2024 DT.08.02.2024)FOR
MOVING THE PETITION ON URGENT BASIS
FILED BY THE PETITIONER
